‘Then you should say what you mean’ the March Hare went on.
‘I do’, Alice hastily replied; ‘At least, I mean what I say - - - that’s the same thing, you know.’
‘Not the same thing a bit!’ said the Hatter. ‘You might just as well say that ‘I see what I eat’ is the same thing as ‘I eat what I see!’
- Alice’s Adventures in Wonderland
I have previously posted humorous items connected with judges and courts – judicial comments, court results, even judgments published in rhyme. The last is a peculiarly American phenomenon, British and Australian courts usually avoiding such excesses. The Australian attitude is summed up by comments by former Chief Justice Murray Gleeson of the High Court of Australia, in a 1998 speech delivered at the National Judicial Orientation Programme:
“Some judges, out of personal good nature, or out of a desire to break the tension that can develop in a courtroom, occasionally feel it appropriate to treat a captive audience to a display of wit. Sometimes this is appreciated by the audience, but sometimes it is not. When it is not the consequences can be very unfortunate. Judges and legal practitioners may underestimate the seriousness which litigants attach to legal proceedings, and they can become insensitive to the misunderstandings which might arise if the judge appears to be making fun of someone involved in the case. Without wishing to appear to be a killjoy, I would caution against giving too much scope to your natural humour or high spirits when presiding in a courtroom. Most litigants and witnesses do not find court cases at all funny. In almost ten years of dealing with complaints against judicial officers to the Judicial Commission of New South Wales I have seen many cases where flippant behaviour has caused unintended but deep offence.
Similar comments have been made by American jurists. A 1967 text by an Arkansas Supreme Court judge, advising judges on writing judgments, stated that
“. . . Judicial humor is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down.”
(Smith, A Primer of Opinion Writing, For Four New Judges, 21 Ark. L. Rev. 197, 210.)
This has not been the opinion of American judges such as Michael Eakin, who regularly delivers judgments in verse, and Judge Deborah Servitto, who delivered her judgment in rap in a case brought against Eminem:
Another American judge upon whom such lessons were lost was Richard Rome.
On January 30, 1974, a young woman was arrested in Kansas for prostitution, having solicited a police officer by the name of Harris. Originally given the maximum sentence by Judge Rome, 6 months jail and a $1,000 fine, she appealed, the appeal was dismissed by consent and the case was returned to Rome where her lawyer applied for probation. Rome agreed and gave her 2 years probation. He also published his judgment in verse, and not very good verse (the reports on the case leave the defendant’s name blank):
This is the saga of ___ ___ ___,
Whose ancient profession brings her before us.
On January 30th, 1974,
This lass agreed to work as a whore.
Her great mistake, as was to unfold,
Was the enticing of a cop named Harold.
Unknown to ___, this officer, surnamed Harris,
Was duty-bent on ___’s lot to embarrass.
At the Brass Rail they met,
And for twenty dollars the trick was all set.
In separate cars they did pursue,
To the sensuous apartment of ___ ___.
Bound for her bed she spared not a minute,
Followed by Harris with his heart not in it!
As she prepared to repose there in her bay,
She was arrested by Harris, to her great dismay!
Off to the jailhouse poor ___ was taken,
Printed and mugged, her confidence shaken.
Formally charged by this great State,
With offering to Harris to fornicate.
Her arraignment was formal, then back to jail,
And quick as a flash she was admitted to bail.
On February 26, 1974,
The State of Kansas tried this young whore.
A prosecutor named Brown,
Represented the Crown.
___ ___, her freedom in danger,
Was being defended by a chap named Granger.
Testimony was presented and arguments heard,
Poor ___ waited for the Judge's last word.
The finding was guilty, with no great alarm,
And ___ was sentenced to the Women’s State Farm.
An appeal was taken, to a higher court ___ went,
The thousand dollar fine was added to imprisonment.
Trial was set in this higher court,
But the route of appeal ___ chose to abort.
And back to Judge Rome, came this lady of the night,
To plead for her freedom and end this great fight.
So under advisement ___’s freedom was taken,
And in the Bastille this lady did waken.
The judge showed mercy and ___ was free,
But back to the street she could not flee.
The fine she’d pay while out on parole,
But not from men she used to cajole.
From her ancient profession she'd been busted,
And to society's rules she must be adjusted.
If from all of this a moral doth unfurl,
It is that Pimps do not protect the working girl!
The media picked up on it and there was general criticism of Judge Rome’s judgment, both in the sense of his written opinion and his outlook. One feminist group circulated a protest letter to the bar association and judicial authorities. Rome cited the letter writers to appear before him on charges of contempt. When they appeared he expounded his views on prostitution, then dismissed the charges.
That was not the end of the matter. It was brought to the attention of the Commission on Judicial Qualifications to determine if Judge Rome violated the Code of Judicial Conduct. He was found to have breached Canon 3A(3): "A judge should be patient, dignified, and courteous to litigants ...".
Judge Rome rejected the Commission's finding.
The Supreme Court of Kansas affirmed the Commission's conclusion that Judge Rome be publicly censured, overruling Rome’s reliance upon the right of freedom of speech:
Respondent urges that the first amendment right to freedom of speech will be infringed if he is disciplined for the form and manner of his memorandum decision . . . For a judge the right to speak freely is circumscribed by the code of judicial conduct, just as that of the lawyer is subject to the code of professional responsibility. . . Respondent is not being subjected to disciplinary proceedings because he wrote and filed a memorandum decision in poetic form but because of the particular manner in which it was written, that is, allegedly holding out a a litigant to public ridicule and scorn
(In re Rome, 542 P. 2nd 676 (Kan. 1975).
Rome was censured not for his poetry or the form of his judgment but for denigrating the defendant.
The slate in Australia, when it comes to that same principle, is not clean. Rome’s case and determination was in 1974. How much more serious is it when a judge in 1993 advises a jury that within a marriage, “rougher than usual handling” may be justified in convincing a wife to engage in sex, without constituting rape? That is not denigration of a defendant, it is abuse of the victim.
“Of course, you may run into considering in this case the question of, shall I say, persuasion. There is, of course, nothing wrong with a husband, faced with his wife’s initial refusal to engage in intercourse, in attempting, in an acceptable way, to persuade her to change her mind, and that may involve a measure of rougher than usual handling. It may be, in the end, that handling and persuasion will persuade the wife to agree. Sometimes it is a fine line between not agreeing, then changing of the mind, and consenting.”
- Mr Justice Derek Boland
Supreme Court of South Australia, directions to jury, 1993(case stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259).
In that case a man had been charged with raping his wife. After making the above comments, Boland J also told the jury the story of a woman who falsely accused a man of rape. The man was charged, and released from police custody. He later committed suicide. The judge told the jury to be mindful of this story in considering the rape case currently before them.
The jury acquitted the husband and the judge’s comments drew a storm of criticism. Those comments, and other unacceptable comments at the time (notably that “n” can mean “yes”) also resulted in judges and magistrates having to participate in programs and courses on community attitudes, women’s rights and awareness.